exv4w7






Exhibit 4.7




SUBSCRIPTION AGENT AGREEMENT




	 	 	 	 	 	 	 
	 

	 	Date:	 	 	 	 
	 

	 	 	 	 

	 	 






Bank of New York Mellon

480 Washington Blvd., 29th Floor

Jersey City, N.J. 07310



Attn:      Reorganization Department



Ladies and Gentlemen:




     Builders FirstSource, Inc., a Delaware corporation (the “Company”) is distributing at no
charge to holders of Company common stock (“Common Stock”) transferable subscription rights (the
“Rights”) to purchase up to an aggregate of 58,571,428 shares of Common Stock (the “Rights
Offering”). Each Right will entitle the holder of the Right to purchase one share of Common Stock
at a subscription price of $3.50 per share (the “Basic Subscription Privilege”), payable by
cashier’s or certified check. Subscribers (other than JLL Partners Fund V, L.P. and Warburg Pincus
Private Equity IX, L.P.) who exercise their Rights in full may also over-subscribe for additional
shares of Common Stock (the “Over-Subscription Privilege”), subject to certain limitations, to the
extent additional shares of Common Stock are available. The Rights will expire if they are not
exercised by 5:00 p.m., Eastern Time, on the date set forth in the Company’s prospectus (the
“Prospectus”) included its Registration Statement on Form S-3 (File No. 333-162906) filed with the
Securities and Exchange Commission (“SEC”) on November 5, 2009, as such Registration Statement is
amended from time to time (the “Registration Statement”), unless such date (the “Expiration Date”)
is extended (the “Expiration Time”). The term “Subscribed” shall mean submitted for purchase from
the Company by a Rights holder in accordance with the terms of the Rights Offering, and the term
“Subscription” shall mean any such submission.



     The terms of the Rights Offering are more fully described in the Prospectus forming part of
the Registration Statement and the accompanying Letter of Instruction filed as Exhibit 99.1 to the
Registration Statement. Copies of the Prospectus and the Letter of Instruction are annexed hereto
as Exhibit 1 and Exhibit 2, respectively. The Company will provide Bank of New York Mellon copies
of all amendments to the Registration Statement filed with the SEC. All terms used and not defined
herein shall have the same meaning as in the Prospectus. Promptly after the record date relating
to the Rights Offering (the “Record Date”), the Company will provide you with a list of holders of
Common Stock as of the Record Date (the “Record Stockholders List”). The Company will notify you
of the Record Date at least one business day prior thereto.



     The Rights are evidenced by transferable subscription certificates, a copy of the form of
which is annexed hereto as Exhibit 3. No fractional Rights will be issued. Fractional Rights will
be rounded down to the nearest whole number.



     Further, the Rights Offering provides that subscribing shareholders, and only those
subscribing shareholders who exercise their Rights in full (other than JLL Partners Fund V, L.P.
and Warburg Pincus Private Equity IX, L.P.), may exercise their Over-Subscription Privilege as more
fully described in the Registration Statement. BNY Mellon shall, after the initial allocation



 









 







of Common Stock to those shareholders exercising their Basic Subscription Privilege, allocate any
remaining shares of Common Stock, as more fully described in the Registration Statement.



     The Company hereby appoints you as Subscription Agent (the “Subscription Agent”) for the
Rights Offering and agrees with you as follows:




	1)	 	As Subscription Agent, you are authorized and directed to:






(A) Issue the Rights in accordance with this Agreement in the names of the holders of the
Common Stock of record on the Record Date, keep such records as are necessary for the
purpose of recording such issuance, and furnish a copy of such records to the Company. The
Rights may be signed on behalf of the Subscription Agent by the manual or facsimile
signature of a Vice President or Assistant Vice President of the Subscription Agent, or by
the manual signature of any of its other authorized officers.




(B) Promptly after you receive the Record Stockholders List:




     (a) mail or cause to be mailed, by first class mail, to each holder of Common Stock of
record on the Record Date whose address of record is within the United States and Canada,
(i) a certificate evidencing the Rights to which such stockholder is entitled under the
Rights Offering, (ii) a copy of the Prospectus, (iii) a Letter of Instruction, and (iv) a
return envelope addressed to the Subscription Agent; and




     (b) mail or cause to be mailed, by air mail, to each holder of Common Stock of record
on the Record Date whose address of record is outside the United States and Canada, or is an
A.P.O. or F.P.O. address (i) a copy of the Prospectus, and (ii) a Letter of Instruction
(different from the Letter of Instruction sent to stockholders whose address of record is
within the United States and Canada). You shall refrain from mailing Rights issuable to any
holder of Common Stock of record on the Record Date whose address of record is outside the
United States and Canada, or is an A.P.O. or F.P.O. address, and hold such Rights for the
account of such stockholder subject to such stockholder making satisfactory arrangements
with the Subscription Agent for the exercise or other disposition of the Rights evidenced
thereby, and follow the instructions of such stockholder for the exercise, sale or other
disposition of such Rights if such instructions are received at or before 11:00 a.m., New
York City Time, on the Expiration Date.




(C) Mail
or deliver a copy of the Prospectus (i) to each assignee or transferee of Rights
upon your receiving appropriate documents to register the assignment or transfer thereof and
(ii) with certificates for shares of Common Stock when such are issued to persons other than
the registered holder of the Rights.




(D) Accept Subscriptions upon the due exercise (including payment of the Subscription Price)
on or prior to the Expiration Time of Rights in accordance with the terms of the Rights and
the Prospectus.




(E) Subject to the next sentence, accept Subscriptions from stockholders whose Rights are
alleged to have been lost, stolen or destroyed upon receipt by you of an affidavit of theft,
loss or destruction and/or a bond of indemnity in form and substance satisfactory to you,
accompanied by payment of the Subscription Price for the total number of shares of Common
Stock Subscribed for. Upon receipt of such affidavit and/or bond of indemnity and
compliance with any other applicable requirements, stop orders shall be placed on said
Rights and you shall withhold delivery of the shares of Common Stock Subscribed for until
after the Rights have expired and it has been determined that the Rights



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evidenced by the certificates have not otherwise been purported to have been exercised or
otherwise surrendered.




(F) Accept Subscriptions, without further authorization or direction from the Company,
without procuring supporting legal papers or other proof of authority to sign (including
without limitation proof of appointment of a fiduciary or other person acting in a
representative capacity), and without signatures of co-fiduciaries, co-representatives or
any other person:




     (a) if the Right is registered in the name of a fiduciary and is executed by such
fiduciary and the Common Stock is to be issued in the name of such fiduciary;




     (b) if the Right is registered in the name of joint tenants and is executed by one of
the joint tenants, provided the certificate representing the Common Stock is issued in the
names of, and is to be delivered to, such joint tenants;




     (c) if the Right is registered in the name of a corporation and is executed by a person
in a manner which appears or purports to be done in the capacity of an officer, or agent
thereof, provided the Common Stock is to be issued in the name of such corporation; or




     (d) if the Right is registered in the name of an individual and is executed by a person
purporting to act as such individual’s executor, administrator or personal representative,
provided, the Common Stock is to be registered in the name of the subscriber as executor or
administrator of the estate of the deceased registered holder and there is no evidence
indicating the subscriber is not the duly authorized representative that he purports to be.




(G) Accept Subscriptions even though unaccompanied by Rights, under the circumstances and in
compliance with the terms and conditions set forth in the Prospectus under the heading
“Rights Offering — Method of Subscription — Exercise of Rights.”




(H) Refer to the Company for specific instructions as to acceptance or rejection,
Subscriptions received after the Expiration Time, Subscriptions not authorized to be
accepted pursuant to this Paragraph 1, and Subscriptions otherwise failing to comply with
the requirements of the Prospectus and the terms and conditions of the Rights.




(I) Upon acceptance of a Subscription:




     (a) hold all monies received in a special account for the benefit of the Company.
Promptly following the Expiration Time you shall distribute to the Company the funds in such
account and issue certificates for shares of Common Stock issuable with respect to
Subscriptions which have been accepted.




     (b) advise the Company daily by e-mail to the attention of Jeffrey Wier at the Company
(jeff.wier@bldr.com) (the “Company Representative”) with copies to Brendan McGill at Alston
& Bird (brendan.mcgill@alston.com), as to the total number of shares of Common Stock
Subscribed for, total number of Rights sold, total number of Rights partially Subscribed for
and the amount of funds received, with cumulative totals for each; and in addition advise
the Company Representative, by telephone (214) 880-3575, confirmed by e-mail
jeff.wier@bldr.com, of the amount of funds received identified in accordance with (a) above,
deposited, available or transferred in accordance with (a) above, with cumulative totals;
and



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     (c) as promptly as possible but in any event on or before 10:00 a.m., Eastern Time, on
the first full business day following the Expiration Time, advise the Company Representative
in accordance with (b) above of the number of shares Subscribed for and the number of shares
of Common Stock unsubscribed for.




(K) Upon completion of the Rights Offering, you shall requisition certificates from the
Transfer Agent for shares of Common Stock Subscribed for.




	2)	 	(A) The Rights shall be issued in registered form only. The Company shall appoint and have
in office at all times a Transfer Agent and Registrar for the Rights, reasonably satisfactory
to you, which shall keep books and records of the registration and transfers and exchanges of
Rights (such books and records are hereinafter called the “Rights Register”). The Company
shall promptly notify the Transfer Agent and Registrar of the exercise of any Rights. The
Company shall promptly notify you of any change in the Transfer Agent and Registrar of the
Rights.






     (B) All Rights issued upon any registration of transfer or exchange of Rights shall be
the valid obligations of the Company, evidencing the same obligations, and entitled to the
same benefits under this Agreement, as the Rights surrendered for such registration of
transfer or exchange.




     (C) Any Right when duly endorsed in blank shall be deemed negotiable, and when a Right
shall have been so endorsed the holder thereof may be treated by the Company, you and all
other persons dealing therewith as the absolute owner thereof for any purpose and as the
person entitled to exercise the rights represented thereby, any notice to the contrary
notwithstanding, but until such transfer is registered in the Rights Register, the Company
and you may treat the registered holder thereof as the owner for all purposes.




	3)	 	You will follow your regular procedures to attempt to reconcile any discrepancies between the
number of shares of Common Stock that any Right may indicate are to be issued to a stockholder
and the number that the Record Stockholders List indicates may be issued to such stockholder.
In any instance where you cannot reconcile such discrepancies by following such procedures,
you will consult with the Company for instructions as to the number of shares of Common Stock,
if any, you are authorized to issue. In the absence of such instructions, you are authorized
not to issue any shares of Common Stock to such stockholder.






	4)	 	You will examine the Rights received by you as Subscription Agent to ascertain whether they
appear to you to have been completed and executed in accordance with the applicable Letter of
Instruction. In the event you determine that any Right does not appear to you to have been
properly completed or executed, or where the Rights do not appear to you to be in proper form
for Subscription, or any other irregularity in connection with the Subscription appears to you
to exist, you will follow, where possible, your regular procedures to attempt to cause such
irregularity to be corrected. You are not authorized to waive any irregularity in connection
with the Subscription, unless you shall have received from the Company the Right which was
delivered, duly dated and signed by an authorized officer of the Company, indicating that any
irregularity in such Right has been cured or waived and that such Right has been accepted by
the Company. If any such irregularity is neither corrected nor waived, you will return to the
subscribing stockholder (at your option by either first class mail under a blanket surety bond
or insurance protecting you and the Company from losses or liabilities arising out of the
non-receipt or nondelivery of Rights or by registered mail insured separately for the value of
such Rights) to such stockholder’s address as set forth in the Subscription any Rights
surrendered in connection therewith and any other documents received with such Rights,




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	 	 	and a letter of notice to be furnished by the Company explaining the reasons for the return
of the Rights and other documents.






	5)	 	Each document received by you relating to your duties hereunder shall be dated and time
stamped when received.






	6)	 	(A) For so long as this Agreement shall be in effect, the Company will reserve for
issuance and keep available free from preemptive rights a sufficient number of shares of
Common Stock to permit the exercise in full of all Rights issued pursuant to the Rights
Offering. Subject to the terms and conditions of this Agreement, you will request the
Transfer Agent for the Common Stock to issue certificates evidencing the appropriate number of
shares of Common Stock as required in order to effectuate the Subscriptions.






     (B) The Company shall take any and all action, including without limitation obtaining
the authorization, consent, lack of objection, registration or approval of any governmental
authority, or the taking of any other action under the laws of the United States of America
or any political subdivision thereof, to insure that all shares of Common Stock issuable
upon the exercise of the Rights at the time of delivery of the certificates therefor
(subject to payment of the Subscription Price) will be duly and validly issued and fully
paid and nonassessable shares of Common Stock, free from all preemptive rights and taxes,
liens, charges and security interests created by or imposed upon the Company with respect
thereto.




     (C) The Company shall from time to time take all action necessary or appropriate to
obtain and keep effective all registrations, permits, consents and approvals of the SEC and
any other governmental agency or authority and make such filings under Federal and state
laws which may be necessary or appropriate in connection with the issuance, sale, transfer
and delivery of Rights or Common Stock issued upon exercise of Rights.




	7)	 	If certificates representing shares of Common Stock are to be delivered by you to a person
other than the person in whose name a surrendered Right is registered, you will issue no
certificate for Common Stock until the Right so surrendered has been properly endorsed (or
otherwise put in proper form for transfer) and the person requesting such exchange has paid
any transfer or other taxes or governmental charges required by reason of the issuance of a
certificate for Common Stock in a name other than that of the registered holder of the Right
surrendered, or has established to your satisfaction that any such tax or charge either has
been paid or is not payable.






	8)	 	Should any issue arise regarding federal income tax reporting or withholding, you will take
such action as the Company instructs you in writing.






	9)	 	The Company may terminate this Agreement at any time by so notifying you in writing. You may
terminate this Agreement upon 30 days’ prior notice to the Company. Upon any such
termination, you shall be relieved and discharged of any further responsibilities with respect
to your duties hereunder. Notwithstanding the foregoing, you may not resign during the period
starting 10 days prior to the commencement of the Rights Offering and the Closing of the
Offering unless the Rights Offering is terminated or extended for more than 30 days. Upon
payment of all your outstanding fees and expenses, you will forward to the Company or its
designee promptly any Right or other document relating to your duties hereunder that you may
receive after your appointment has so terminated. Sections 11, 12, and 14 of this Agreement
shall survive any termination of this Agreement.




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	10)	 	As agent for the Company hereunder you:






(A) shall have no duties or obligations other than those specifically set forth herein or as
may subsequently be agreed to in writing by you and the Company;




(B) shall have no obligation to issue any shares of Common Stock unless the Company shall
have provided a sufficient number of certificates for such Common Stock;




(C) shall be regarded as making no representations and having no responsibilities as to the
validity, sufficiency, value, or genuineness of any Rights surrendered to you hereunder or
shares of Common Stock issued in exchange therefor, and will not be required to or be
responsible for and will make no representations as to, the validity, sufficiency, value or
genuineness of the Rights Offering;




(D) shall not be obligated to take any legal action hereunder; if, however, you determine to
take any legal action hereunder, and where the taking of such action might, in your
judgment, subject or expose you to any expense or liability you shall not be required to act
unless you shall have been furnished with an indemnity reasonably satisfactory to you;




(E) may rely on and shall be fully authorized and protected in acting or failing to act upon
any certificate, instrument, opinion, notice, letter, telegram, telex, facsimile
transmission or other document or security delivered to you and reasonably believed by you
to be genuine and to have been signed by the proper party or parties;




(F) shall not be liable or responsible for any recital or statement contained in the
Prospectus or any other documents relating thereto;




(G) shall not be liable or responsible for any failure on the part of the Company to comply
with any of its covenants and obligations relating to the Rights Offering, including without
limitation obligations under applicable securities laws;




(H) may rely on and shall be fully authorized and protected in acting or failing to act upon
the written, telephonic or oral instructions with respect to any matter relating to you
acting as Subscription Agent covered by this Agreement (or supplementing or qualifying any
such actions) of officers of the Company;




(I) may consult with counsel satisfactory to you, and the written advice of such counsel
shall be full and complete authorization and protection in respect of any action taken,
suffered, or omitted by you hereunder in good faith and in accordance with the advice of
such counsel;




(J) may perform any of your duties hereunder either directly or by or through agents or
attorneys and you shall not be liable or responsible for any misconduct or negligence on the
part of any agent or attorney appointed with reasonable care by you hereunder; and




(K) are not authorized, and shall have no obligation, to pay any brokers, dealers, or
soliciting fees to any person.




	11) 	In the event any material question or dispute arises with respect to the proper
interpretation of the Rights Offering or your duties hereunder or the rights of the Company or
of any stockholders surrendering Rights pursuant to the Rights Offering, you shall not be
required to act and shall not be held liable or responsible for your refusal to act until the
question or dispute has been judicially settled (and, if appropriate, you may




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	 	 	file a suit in interpleader or for a declaratory judgment for such purpose) by final
judgment rendered by a court of competent jurisdiction, binding on all parties interested in
the matter which is no longer subject to review or appeal, or settled by a written document
in form and substance reasonably satisfactory to you and executed by the Company and each
such stockholder and party. In addition, you may require for such purpose, but shall not be
obligated to require, the execution of such written settlement by all the stockholders and
all other parties that are directly affected by the settlement.
	 
	12)	 	Any instructions given to you orally, as permitted by any provision of this Agreement, shall
be confirmed in writing by the Company as soon as practicable. You shall not be liable or
responsible and shall be fully authorized and protected for acting, or failing to act, in
accordance with any oral instructions which do not conform with the written confirmation
received in accordance with this Section.






	13)	 	Whether or not any Rights are surrendered to you, for your services as Subscription Agent
hereunder, the Company shall pay to you compensation in accordance with the fee schedule
attached as Exhibit A hereto, together with reimbursement for out-of-pocket expenses,
including reasonable fees and disbursements of counsel.






	14)	 	The Company covenants to indemnify and hold you harmless from and against any loss,
liability, claim or expense (“Loss”) to the extent resulting from the performance of your
duties under this Agreement, including the costs and expenses of defending yourself against
any Loss, unless such Loss shall have been determined by a court of competent jurisdiction to
be a result of your gross negligence or intentional misconduct. Anything in this agreement to
the contrary notwithstanding, in no event shall you be liable for special, indirect,
incidental or consequential loss or damage of any kind whatsoever (including but not limited
to lost profits), even if you have been advised of the likelihood of such damages and
regardless of the form of action. Any liability of yours will be limited to the amount of fees
paid by Client hereunder.






	15)	 	If any provision of this Agreement shall be held illegal, invalid, or unenforceable by any
court, this Agreement shall be construed and enforced as if such provision had not been
contained herein and shall be deemed an Agreement among us to the full extent permitted by
applicable law.






	16)	 	The Company represents and warrants that (a) it is duly incorporated, validly existing and in
good standing under the laws of its jurisdiction of incorporation, (b) the making and
consummation of the Rights Offering and the execution, delivery and performance of all
transactions contemplated thereby (including without limitation this Agreement) have been duly
authorized by all necessary corporate action and will not result in a breach of or constitute
a default under the certificate of incorporation or bylaws of the Company or any indenture,
agreement or instrument to which it is a party or is bound, (c) this Agreement has been duly
executed and delivered by the Company and constitutes the legal, valid, binding and
enforceable obligation of it, (d) the Rights Offering will comply in all material respects
with all applicable requirements of law and (e) to the best of its knowledge, there is no
litigation pending (other than those lawsuits referred to as In Re Builders FirstSource, Inc.
Shareholders and Derivative Litigation in the Court of Chancery of the State of Delaware,
Consolidated C.A. No. 4900-VCS) or threatened in writing as of the date hereof in connection
with the Rights Offering.






	17)	 	In the event that any claim of inconsistency between this Agreement and the terms of the
Rights Offering arise, as they may from time to time be amended, the terms of the Rights
Offering shall control, except with respect to the duties, liabilities and rights, including




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	 	 	compensation and indemnification of you as Subscription Agent, which shall be controlled by
the terms of this Agreement.
	 
	18)	 	Set forth in Exhibit B hereto is a list of the names and specimen signatures of the persons
authorized to act for the Company under this Agreement. The Secretary or Assistant Secretary
of the Company shall, from time to time, certify to you the names and signatures of any other
persons authorized to act for the Company under this Agreement.






	19)	 	Except as expressly set forth elsewhere in this Agreement, all notices, instructions and
communications under this Agreement shall be in writing, shall be effective upon receipt and
shall be addressed, if to the Company, to its address set forth beneath its signature to this
Agreement, or, if to the Subscription Agent, to Bank of New York Mellon, 480 Washington Blvd.,
Jersey City, N.J. 07310, Attention: Reorganization Department, or to such other address as a
party hereto shall notify the other parties.






	20)	 	This Agreement shall be governed by and construed in accordance with the laws of the State of
New York, without giving effect to conflict of laws rules or principles, and shall inure to
the benefit of and be binding upon the successors and assigns of the parties hereto; provided
that this Agreement may not be assigned by any party without the prior written consent of all
other parties.






	21)	 	No provision of this Agreement may be amended, modified or waived, except in a written
document signed by both parties.






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          Please acknowledge receipt of this letter and confirm your agreement concerning your
appointment as Subscription Agent, and the arrangements herein provided, by signing and returning
the enclosed copy hereof, whereupon this Agreement and your acceptance of the terms and conditions
herein provided shall constitute a binding Agreement between us.




	 	 	 	 	 
	 	Very truly yours,





BUILDERS FIRSTSOURCE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Address for notices:




Accepted as of the date

above first written:




	 	 	 	 	 
	 	BANK OF NEW YORK MELLON

AS SUBSCRIPTION AGENT

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	 

	 	Exhibit 1
	 	Prospectus
	 

	 	Exhibit 2
	 	Letter of Instruction
	 

	 	Exhibit 3
	 	Form of Right






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